The defendants commenced an arbitration against the claimant under a gas sales and purchase contract. That contract provided that any dispute, controversy or claim was to be finally settled by arbitration in accordance with the “Procedures for arbitration” contained in an annex to the contract, which set out the procedure for any arbitration to follow and provided that in the case of a gap in the procedural rules of arbitration as contained in the contract, “the procedural rules of arbitration of the [ICC] shall apply”. A partial award was issued in the defendants’ favour. The claimant applied for permission to appeal against the award under section 69 of the Arbitration Act 1996. The defendants raised a threshold objection, arguing that it was not open to the claimant to appeal because the parties had agreed that the right to appeal on a point of law was excluded, the parties having “otherwise agreed” to waive their right to appeal under section 69 by incorporating article 28.6 of the ICC Arbitration Rules into their contract. The waiver of the right to appeal in article 28.6 had to apply to fill the gap in the parties’ contract, which did not contain rules about appeals to the court on points of law.
On the application—
Held, application refused. As a matter of construction, the annex was concerned with the procedural rules of the arbitration and not with any right of appeal or process of appeal. That there was no provision in the contract as to a right of appeal could therefore not constitute a gap. The annex incorporated the ICC Arbitration Rules only in the event that there was a gap in the procedural rules of arbitration as contained in the contract, and, as there was no gap, they were not incorporated. There was, moreover, no requirement on parties explicitly to reserve the right of appeal for the purposes of section 69 of the Arbitration Act 1996: the default position was that there was a right of appeal, not the other way round. Accordingly, the parties were to be regarded as having preserved their right of appeal under section 69 and the defendants’ threshold objection failed. However, since the claimant had not shown that the tribunal’s decision on the legal question identified for the purposes of the appeal was obviously wrong, permission to appeal under section 69 would be refused (paras 19, 22, 24–25, 26, 29, 31, 33, 52, 59, 68–70, 71, 76).
Mark Howard QC, Simon Rainey QC, Natalie Moore and Emilie Gonin (instructed by Eversheds Sutherland (International) LLP) for the claimant.
Constantine Partasides QC, Ricky Diwan QC and Tariq Baloch (instructed by McDermott Will & Emery UK LLP) for the defendants.